Turgeon v. Trinity Indus., Inc.
| Decision Date | 05 September 2018 |
| Docket Number | Case No. 15-cv-288-PB |
| Citation | 2018 DNH 179 |
| Parties | Cheryl Turgeon, et al. v. Trinity Industries, Inc., et al. |
| Court | U.S. District Court — District of New Hampshire |
I must determine in this case whether federal common law should shield a state government contractor from product liability claims if the federal government has reimbursed the state for some or all of the cost of the product that gave rise to the claims.
Cheryl Turgeon was injured when the car she was driving struck a guardrail end terminal manufactured by Trinity Industries, Inc ("Trinity"). A contractor working for the State of New Hampshire purchased the end terminal from Trinity and installed it on a roadway that is a part of the National Highway System. The federal government ultimately reimbursed the State for the cost of the end terminal pursuant to a program that covers improvements to the National Highway System.
Turgeon and her husband later sued Trinity to recover for their injuries. Trinity responded with a motion for summary judgment arguing that the federal government contractor defense recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988) should be extended to cover the Turgeons' claims because the federal government reimbursed the State for the cost of the end terminal. I decline Trinity's invitation to extend the federal contractor defense to claims against state contractors.
On July 17, 2014, at approximately 10:35 A.M., Cheryl Turgeon was driving alone in her 2013 Dodge Durango, southbound on New Hampshire Route 9 ("NH Route 9") in Stoddard, NH. For reasons that are not specified in the record, her car drifted to the right, exited the single-lane roadway, and struck head-on the flat, steel face of a guardrail end terminal head-on. Instead of safely absorbing and dissipating her car's energy, as the device was designed to do, the end terminal allegedly malfunctioned and "jammed" at a critical point shortly after impact. Turgeon alleges that the jam was caused by several defectively designed components of the model at issue. The jam, in turn, triggered a rapid chain of events that ultimately resulted in the impalement of the vehicle's driver's side compartment by a jagged piece of folded guardrail. Turgeon's legs were severely injured in the process. She now claims thatthe accident would not have unfolded as it did had the end terminal been safely designed and tested.1
Trinity manufactured and sold the end terminal at issue under the "ET-Plus" brand name. It was installed at the direction of the New Hampshire Department of Transportation ("NH DOT") by a private contractor. Prior to the sale of the terminal in 2006, Trinity had sought and obtained an "approval letter" for the terminal from the Federal Highway Administration ("FHWA"). The approval letter signified that the FHWA had reviewed certain design specifications and crash-test reports submitted to it by Trinity, and determined that the ET-Plus was sufficiently "crashworthy" under relevant federal testing standards. As such, the FHWA deemed the ET-Plus "eligible" for federal reimbursement under the Federal-Aid Highway Program ("FAHP"). This meant that, pending further project approval, the NH DOT could have sought federal funding to help pay for the purchase and installation of ET-Plus terminals on NH Route 9 where the accident occurred.
Trinity contends that the FHWA's continued approval of the ET-Plus under the FAHP constitutes sufficient federal involvement to entitle it to the federal government contactor defense recognized in Boyle v. United Technologies Corp., 487U.S. 500 (1988). It argues that the FHWA's review and approval of the device through correspondence with Trinity conclusively establishes the elements of the defense as outlined in Boyle, and therefore entitles it to summary judgment on all of the Turgeons' claims. Before addressing Trinity's argument, I first describe the design and relevant mechanics of the ET-Plus and the FHWA's role in administering the FAHP. I then explain the federally accepted testing standards used to assess the "crashworthiness" of equipment like the ET-Plus, and the FHWA's "approval" process for establishing reimbursement eligibility for such devices. Lastly, I discuss the FHWA's review of the ET-Plus and the specific design defects alleged by Turgeon in greater detail.
The ET-Plus is an energy-absorbing guardrail terminal system installed on the exposed ends of "W-beam" roadway guardrails. The model is widely used on roadways throughout the country. Its general purpose is to mitigate the risks historically implicated when an automobile collides with the end of an exposed or buried guardrail. Generally, it does so by absorbing a vehicle's energy upon impact and dissipating it down the length of the guardrail. Made of steel, the terminal consists of four basic parts: (i) the strike plate, (ii) theimpact head, (iii) the extruder throat, and (iv) the feeder channel or "channel chute." See Apps. A & B. The strike plate is a flat, rectangular surface, with outward protruding edges along its vertical sides, known as "teeth." It is attached to, and reinforced by, an asymmetrical, quadrilateral-shaped block known as the "terminal head." The head tapers back from the plate and attaches to the "extruder throat," which in turn attaches to the "feeder channel." The three-foot-long "feeder channel" is an oblong, rectangular structure that attaches to the front of the "W-beam" guardrail to which the entire terminal is affixed.
In a head-on collision, the strike plate and impact head catch the vehicle's momentum and the entire assembly is designed to slide down the "W-beam" barrier until the vehicle comes to a relatively safe stop. As the terminal's feeder channel slides down the rail, the W-beam guardrail threads through the terminal's extruder throat. The throat flattens the guardrail out of its W-shape and passes it through a curved "exit gap" in the terminal head, pushing or "extruding" it out and away off the side of the road. The process produces a curled ribbon of steel that squeezes out through the exit gap of the terminalalongside the edge of the roadway as the vehicle decelerates to a stop.2
The ET-Plus is the latest model of end terminals manufactured and sold by Trinity. It was preceded by the "ET-2000." See Apps. C & D. Both models function in the same general manner. See Doc. No. 46-7 at 12-19 (Expert Report of Dr. Marthinus van Schoor, Dec. 8, 2017). The ET-2000 was designed and developed by the Texas A&M Transportation Institute ("TTI") at Texas A&M University in the late 1980s and was manufactured and sold by Trinity from 1992 to 2004 pursuant to an exclusive licensing agreement with TTI. Doc. No. 46-8 at 28-33 . In 1999, TTI began to develop the ET-Plus. See Doc. No. 46-8 at 34, 37.
The ET-Plus was generally designed to function like the ET-2000 and closely resembles its predecessor-model, except for several specific design features that were modified between the two models. The strike plate on the ET-Plus consists of a narrower, 15-inch-wide rectangle, as compared to the ET-2000's 20-inch-wide square plate. The newer strike plate also abandons use of the horizontal "teeth" protruding from the top and bottomedges of the ET-2000's plate, leaving only vertical teeth aligning the sides for the ET-Plus. Additionally, the shape and position of the ET-Plus's impact head resembles an off-centered, asymmetrical quadrilateral favoring the side away from the road, whereas the ET-2000's head resembled a symmetrical triangle, centrally aligned with the axis of the feeder channel. See Apps. B & D. Among other changes, the exit gap, i.e. the available space for the flattened guardrail to slide through and exit the terminal head, was narrowed from 1.5 inches (ET-2000) to 1 inch (ET-Plus). See Doc. No. 46-7 at 32-34 (Dr. van Schoor Expert Report). In 2004, the ET-Plus was further modified to reduce the width of the feeder channel from five inches to four inches. Doc. No. 46-8 at 82-84 (B. Smith Dep.); see Doc. No. 46-9 (Email from S. Brown to S. Malizia, Nov. 9, 2004). In all, these changes reduced the weight of the ET-Plus by roughly 100 pounds.
Both the ET-2000 and the ET-Plus were originally designed to be used on 27-inch-high guardrails. At some point after September 2005, Trinity began selling a version of the ET-Plus for use on 31-inch-high guardrails and it is that version of the product that is at issue in this case.
State expenditures on end terminals like the ET-Plus are often eligible for federal reimbursement under the FAHP, as setout in 23 U.S.C. § 101, et seq. The FAHP is a "federally assisted State program," see 23 U.S.C. § 145, that enables states and localities to seek and obtain federal financial assistance for a variety of projects related to the construction, maintenance, and operation of the National Highway System ("NHS"). See 23 U.S.C. § 101, et seq.; City of Cleveland v. Ohio, 508 F.3d 827, 832 (6th Cir. 2007). The NHS encompasses a vast network of public roadways that serve broad, national interests. See 23 U.S.C. § 103(b). This includes the majority, if not entirety of NH Route 9.3 See id. The FAHP is administered by the FHWA, an agency within the U.S. Department of Transportation. See 49 U.S.C. § 104; 49 C.F.R. §§ 1.85(a)(1), 1.84. The FHWA is empowered "to prescribe and promulgate all needful rules and regulations for the carrying out of [the FAHP]," see 23 U.S.C. § 315; 49 C.F.R. § 1.85, but states ultimately retain "their sovereign rights . . . to determine which projects shall be federally financed." 23 U.S.C. § 145(a); City of Cleveland, 508 F.3d at 832. To avail itself of federal assistance, each state must at least maintain a transportation department ("State DOT") capable of performing certain functions. 23...
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